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Scotland may be independent now if not for focus on identity politics

  • First published in : Visit Website
  • First published on: 05th Apr 2024

I really wish that I did not have to write about the new Hate Crime and Public Order (Scotland) Act again this week. Instead, I wish that the post 2014 leadership of the SNP had spent half as much time on advancing the cause of independence as they have spent on identity politics. Had they done so, Scotland might already be an independent country or at the very least considerably further down the road to independence.

I sense a bewilderment on the part of many SNP members at the focus of our Holyrood parliamentarians and, on the doorsteps, I hear real anger from constituents who think that too much time is spent on virtue signalling and not enough on the issues they care most about such as health, transport, housing, and education.

In her podcast this week, Lesley Riddoch said that she sensed a lot of the annoyance with the Hate Crime Act was because it’s not what people want to see the Scottish Parliament spending its time on. I think she is right about that particularly given that our law already contained robust protections against crimes aggravated by hate and against the stirring up of racial hatred, a crime for which there is a well-documented need.

However, there are people, including an army of unpaid feminist volunteers, who have spent a lot of time looking at the detail of the new Act and the motivations behind it. On their behalf, and as someone who is trained to understand the law, I want to set the record straight on a few issues.

Let’s start by exploding a few myths. Scotland is not disappearing under a tsunami of hate. Here is a graph from the Crown Office and Procurator Fiscal Service’s latest report on trends in hate crime reported in Scotland under the law which pre-dated the new Act.

Trends in hate crime reported, 2003-04 to 2022-23

While it shows an increase in the total number of charges reported to the Crown by the police in respect of sexual orientation and disability, it shows a downward trend in those reported in respect of race, religion, and transgender identity. Only 55 charges with an aggravation of prejudice towards transgender identity were reported in 2022-23, a 36% per cent drop from the 86 charges reported the year before. That’s good news just as the significant drop in racial hate crimes is also good news. I hope this puts things in perspective.

Scotland is not a hate filled country. It IS a very disputatious country. Hate and disputatiousness are not the same thing. Just think how annoyed Yessers were when our enthusiastic support for independence during the 2014 referendum campaign was wrongly portrayed as hateful towards unionists or English people. That is pretty much how many long-standing feminist and lesbian activists feel when our legitimate concerns about the implications of gender identity ideology for women’s privacy, dignity and safety are wrongly portrayed as hateful towards anyone who identifies as trans.

Some people believe that human beings can change sex. Others, including me, do not. Science and biology are on our side. However, we do not want to prevent the expression of the belief that sex is mutable; we just don't want our belief that sex is immutable to be silenced. In this the law is generally on our side as reflected in important recent judgements which have established that gender critical beliefs are “worthy of respect in a democratic society”.

However, aspects of the new Hate Crime Act risk undermining the protections we enjoy for freedom of belief and free speech under the Equality Act and the Human Rights Act. That need not have been the case if the Scottish parliament had followed the recommendations of the judge who carried out the independent report which preceded the Act. He wanted the Act to include a defence that said there would be no prohibition or restriction of discussion, criticism or expressions of antipathy, dislike, ridicule, insult, or abuse of the belief that sex is not binary. The Scottish parliament did not follow his recommendations in this respect (although they did for religious beliefs) and attempts to amend the bill to do so were strongly opposed by lobby groups who adhere to gender identity ideology.

Next, let me explode another myth. England does not have identical legislation to the new Scottish Act. The legislation in England that deals with stirring up offences covers race, religion, and sexual orientation. It does not cover transgender identity. It deals with behaviour which is threatening, not behaviour which is threatening OR abusive, and it has properly tailored defences of the sort recommended by Lord Bracadale.

When the English Law Commission looked at this matter recently, they recommended that if an offence of stirring up hatred based on transgender identity was to be introduced in England it must be accompanied by the sort of tailored defence Lord Bracadale recommended.

The more widely drawn offence in Scotland and the absence of the tailored defence has led to legitimate fears that the law would be used to silence gender critical women. Anyone who is paying attention to the debate on social media knows that it is nonsense to say those fears were unfounded. Furthermore, on Monday morning a government minister suggested that misgendering might be a police matter so it is undoubtedly the case that JK Rowling's intervention and the statement by police that she would not be charged were significant. However, I suspect that if an ordinary woman had tweeted in the same terms as JK Rowling, she might not have got off so lightly.

In 2021, I returned briefly to my practice at the bar to defend a woman who had been charged under laws then in force in respect of tweets which were not dissimilar to JK Rowling’s. If anything, they were a bit tamer. However, she was not a rich internationally respected writer and philanthropist, she was just an ordinary working-class woman.

The charges were dropped after detailed legal representations were made that they breached her rights to freedom of belief and freedom of speech. However, not before she had been put through the ordeal of attending a police station and court on several occasions and having her face all over the newspapers.

Going forward the decision not to proceed against Jo Rowling has set a standard that will require to be followed for everyone because of the principle of equality before the law.

That principle has further ramifications for what has occurred this week. Police Scotland say that they received more than 3000 complaints in the first 48 hours of the Act being brought into force. Some of those complaints were against Humza Yousaf for his “white” speech in parliament a few years ago. While it's a historic speech it is still widely published on the Internet which means that it could be caught by the new law. I think the police’s swift decision that the speech was not criminal was correct.

However, I am troubled by Police Scotland’s announcement that they will not be logging “non-crime hate incidents” in respect of the multiple complaints made against Humza and JK Rowling. Their current policy is to record a non-crime hate incident where a hate crime allegation does not reach the threshold of criminality. Many have urged that they change this policy not least because of a court decision in England finding a similar policy there unlawful. However, Police Scotland have not changed their published policy. Now it seems they are revising it on the hoof to avoid the embarrassment of recording non-crime hate incidents against an internationally renowned author and philanthropist and the First Minister of Scotland.

This really isn't good enough and it calls into question the entire application of the policy to date. The policy should be applied equally to everyone or to no one at all. Police Scotland are already facing a legal challenge from a Tory MSP in relation to the recording of a non-crime hate incident against him. They could now also face very serious allegations of political bias. They need to wipe their existing database of non-crime hate incidents and to carry out a proper review of their policy or else they could be facing a torrent of legal claims.

Finally, I think it is important that the blame for this flawed legislation does not rest just with the Scottish Government and SNP and Green MSPs. This bill had some enthusiastic cheerleaders in the Scottish Labour party and the Lib Dems who now seem to have gone to ground. And as for the Tories, it's a bit rich for Rishi Sunak to attack the new Scottish legislation given the many attacks on free speech that have taken place in England under his party’s watch. Judging by his Government’s recent rhetoric, he has a few more planned for those who dare to disagree with his policies. He has also renewed his threats to leave the ECHR, the very underpinning of our rights to freedom of belief and freedom of speech.

Across the UK, including Scotland, we are seeing a growing tendency to weaponise our laws and police to silence critics of Government policy. This is most emphatically not what was envisaged for Scotland’s future in the heady days of 2014, and it needs to stop.